The Tag Rule

Tag Jurisdiction

The Tag Rule

A court that wants to bind an individual to its judgment needs personal jurisdiction over that person, and the oldest route to it is also the shortest: hand the individual the summons and complaint while the individual stands inside the forum state. In Burnham v. Superior Court the Supreme Court held that a state court may exercise in personam jurisdiction (power over the defendant personally, rather than over property) when the defendant is personally served while physically present in the state, even if the visit is brief and the claim has nothing to do with it.¹ Courts call this basis tag jurisdiction or transient jurisdiction, because the plaintiff need only catch the defendant within the state's borders. The rule applies to natural persons, and for them it stands with domicile in the forum and consent as one of the traditional bases of jurisdiction.²

The rule is a survivor of the sheriff's arrest. At common law a court acquired jurisdiction when the sheriff physically seized the defendant and brought the defendant to court under a writ the plaintiff obtained, the capias ad respondendum.³ Courts abandoned the writ long ago, but a residuum remains: if the defendant is personally served with the summons while physically within the court's territory, the court acquires jurisdiction by virtue of that service alone. One commentator describes in-state service as a more civilized analogue of arresting the defendant.⁴

Because the service is itself the basis for jurisdiction, the plaintiff need prove nothing further. Service within the state gives the court general jurisdiction over any claim against the defendant, whether or not the claim relates to the time, place, or purpose of the defendant's presence there.⁵ The court does not ask where the claim arose or whether the defendant has other ties to the forum. Consider Healy, who is injured in a Minnesota collision caused by Austin, a Minnesota salesman who also travels to South Dakota to sell brushes. Austin's brush sales do not support South Dakota jurisdiction under the minimum-contacts test, because Healy's claim has nothing to do with them. Healy may still sue Austin in South Dakota, however, and have a process server deliver the papers during one of Austin's trips into the state.⁶ The purpose of the trip is irrelevant. What matters is that Austin is in South Dakota when the papers arrive.

Service does two jobs in this situation, and keeping them apart is the key to the rule. Due process requires, first, that the defendant receive adequate notice of the suit, which is the function of service of process. It requires, second, that the court have a basis for exercising power over the defendant, which is a separate question. Courts once discussed the two as though they were interchangeable, but today either may be satisfied while the other fails.⁷ In most cases, long-arm cases especially, service is made outside the forum and supplies only the notice, so the basis must come from somewhere else. In-state personal service is the one instance in which service, notice, and jurisdictional basis overlap.⁸

Two versions of one Georgia lawsuit show how much the location of delivery matters. Danziger sues Alioto in a Georgia federal court over a car accident, and Alioto has no Georgia contacts. In the first version, the process server hands the summons and complaint to Alioto at her hotel while she is visiting Atlanta. Service is proper under Rule 4(e)(2)(A), and in-hand delivery inside Georgia supports personal jurisdiction as well.⁹ In the second version, the accident took place in Florida, and the server hands the papers to Alioto at her shop outside Georgia. Rule 4(e)(2)(A) is still satisfied, because it allows personal delivery and names no particular place for it. The Georgia court nonetheless lacks any basis for jurisdiction, because the accident happened in Florida and Alioto has no other Georgia contacts.¹⁰ The only fact that changed the answer is where the papers were delivered. Personal service gives notice wherever it is made, but it serves as a jurisdictional basis only when it is made inside the forum.¹¹ When service is made outside the state, the plaintiff must find a separate basis, such as domicile, consent, or minimum contacts.¹²

In-state service also lets the court skip the usual two-step analysis of a long-arm statute followed by minimum contacts. The Due Process Clause limits state-court jurisdiction but cannot authorize any court to exercise it; only state law can do that. Traditionally that law was judge-made and consisted of the familiar bases for natural persons (service while present, domicile, and consent) and for corporations (incorporation in the forum and doing business there).¹³ The argument for treating tag as common-law authority is that it has existed for centuries even though statutes never provided for it, whereas specific jurisdiction over defendants outside the state grew out of International Shoe and so requires a statute or rule that explicitly authorizes it.¹⁴ When the defendant was served inside the forum, even during a brief visit, the long-arm statute is irrelevant and the court need not check for minimum contacts, because presence at the time of service is treated as the equivalent.¹⁵

Burnham settled that the rule survives: the Justices could not agree on why jurisdiction based on personal service is constitutional, but they agreed unanimously that the practice remains valid.¹⁶ The sections that follow ask why the rule was doubted, how the Court divided in explaining it, and what limits attach to a rule that presupposes an individual who is voluntarily present.